Lokhova v Longmuir

Permission to add a new cause of action after expiry of the limitation period depends first on whether it arises from the same or substantially the same facts as an existing claim under CPR 17.4(2), construed consistently with Human Rights Act 1998, section 3(1). That is a qualitative, fact-sensitive comparison. Similar defamatory allegations alone are insufficient.

If the threshold is met, permission remains discretionary. The court must consider the merits, delay, prejudice, limitation policy and proportionality. A late amendment may be refused where it is weak, pointless, prejudicial or would introduce disproportionate factual investigation. A reply or aggravated-damages plea cannot properly be deployed as a tactical means of defeating limitation.

The claimant brought a defamation action concerning seven publications in 2011. The defendant had made an unaccepted offer of amends under the Defamation Act 1996. The claimant later sought permission to add two libel claims concerning emails sent in May 2011 and a slander claim concerning words allegedly spoken in February 2014. She also sought to expand her plea in aggravation of damages and relied on a late reply alleging malice.

The proposed claims were prima facie out of time under section 4A of the Limitation Act 1980. The issues were whether the claims fell within section 35 of that Act and CPR 17.4(2), whether permission should be granted, and whether the proposed damages amendments and reply should be allowed.

1. Threshold under CPR 17.4(2). Section 35 of the Limitation Act 1980 and CPR 17.4(2) required comparison of the facts already in issue with those from which the proposed claims arose. Following Goode v Martin [2002] 1 WLR 1840, the rule was to be read as referring to facts already in issue on the existing claim. The exercise involved a qualitative and fact-sensitive judgment. Similarity between defamatory allegations was not enough; the court had to assess the wider factual issues likely to arise.
2. Discretion. Satisfaction of the threshold did not require permission to be granted. The court had to consider whether the claims were tenable, the effect of depriving the defendant of an accrued limitation defence, delay, prejudice, proportionality and the public interest in efficient litigation. The considerations substantially reflected those relevant to section 32A of the Limitation Act 1980, although the claimant had expressly disavowed reliance on that section.
3. Merits and Jameel. The two proposed libel claims were weak and would be dismissed on Jameel (Yousef) v Dow Jones Inc [2005] EWCA Civ 75 grounds. The proposed slander claim lacked a sufficient pleaded and evidential basis for serious harm under section 1 of the Defamation Act 2013, and would also fail on Jameel (Yousef) v Dow Jones Inc grounds.
4. Delay, prejudice and proportionality. The claimant had delayed substantially and without adequate explanation. The two libel claims were already statute-barred by the date of issue of the original proceedings, and no basis had been advanced for defeating the limitation defence. Adding the claims would expose the defendant to additional litigation and disproportionate investigation. Permission was therefore refused.
5. Damages plea and reply. The proposed aggravated-damages plea could not rely on the three proposed publications. The existing claims were sufficient to raise the relevant issues. The court struck out the corresponding parts of the late reply under CPR 3.1(2)(k) and struck out legally misconceived contentions concerning the alleged incapacity to accept the offer of amends under CPR 3.4(2). The claimant retained the right to apply to vary or discharge that part of the order under CPR 3.3(4) and (5).

First instance decision. No appeal history is stated in the judgment.